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Mashudu Netsianda, Senior Court Reporter

A FORMER Zimbabwe Revenue Authority (Zimra) officer who was recently jailed for 14 years after smuggling 39 cars into the country through Plumtree Border Post, defrauding the revenue collector of more than US$530 000, has been released by the High Court on $10 000 bail pending appeal.

Semkelwe Maphosa committed the crimes between January and July last year by forging Customs Clearance Certificates (CCCs) for different types of vehicles worth millions of dollars.

Maphosa is suspected to be part of a criminal syndicate involving another Zimra official, Norest Ushe (29) who was arrested and has since appeared in court for fraud charges of over US$430 000 and $1,4 million.

The case involving Ushe, who is accused of fraudulently clearing 50 cars into the Zimra capturing system without officially charging duty, is still pending before the court.

Maphosa worked as a records clerk at the Zimra registry and was responsible for typing customs clearance certificates.She allegedly forged her superiors’ signatures on the certificates.Maphosa went into hiding before police officers got wind of her whereabouts and arrested her at her hideout.

She was convicted on 39 counts of fraud and acquitted on one count by Plumtree regional magistrate Mr Bishard Chineke who sentenced her to 14 years imprisonment.

For the purposes of sentencing, the counts were grouped into two.For count 1-20, Maphosa was sentenced to eight years and was acquitted on count 25. She was slapped with six years in jail for the remaining 19 counts.

Of the 14 years, five years were suspended for five years on condition that she doesn’t commit a similar offence within that period. A further three years were suspended on condition Maphosa restituted toZimra $1 305 345,68 by December 30 this year.Maphosa was granted $10 000 bail by Bulawayo High Court judge Justice Martin Makonese and ordered to reside at her given address until the matter is finalised.

She was also ordered to report at Plumtree Police Station once a month as part of the bail conditions.The ruling by Justice Makonese follows an application by Maphosa, through her lawyer Mr Zibusiso Ncube of Ncube and Partners, citing the State as a respondent.Justice Makonese said the lower court misdirected itself when it failed to realise that Maphosa did not have to prove her defence. The judge said the appeal carries prospects of success.

“As regards to sentence, while the court a quo has the inherent discretion in matters of sentences, the overall sentence is clearly excessive in all the circumstances. While a custodial sentence would be inevitable in the event that the appeal court dismisses the appeal, the appeal itself against sentence is not by any means a hopeless exercise,” said Justice Makonese.

He said the State failed to advance reasonable prospects of success against both conviction and sentence.

“The State has not advanced any argument that the applicant is likely to abscond pending appeal. In my view, the applicant has discharged the burden of proving that on a balance of probabilities, it is in theinterests of justice for her to be admitted to bail pending appeal,” ruled Justice Makonese.

In her grounds of appeal, Maphosa argued that the magistrate erred by dismissing her defence in which she claimed that any other Zimra officer could have assessed her password or hacked into her profile tocommit the offence.

“The court a quo erred and misdirected itself on the fact that in disregarding that information captured by the appellant in the Zimra systems was processed by other officials who were neither investigatednor called by the State,” she argued.

Maphosa said lower court misdirected itself by disregarding its own findings that there was no direct evidence linking her to the offence.She further argued that the lower court erred by regarding the computer generated data print outs which were human aided as real evidence,Maphosa said the sentence was too harsh and excessive, arguing that the magistrate failed to exercise mercy in passing the sentence given that she was a female first offender of ill-health.

For the State, Mr Khumbulani Ndlovu did not oppose Maphosa’s application for bail pending appeal, saying her appeal against conviction and sentence has prospects of success.According to court papers, it was stated that between January 7 and July 25 last year, at Plumtree Border Post, Maphosa issued CCCs using the Zimra computerised system for 39 cars which had been smuggled intothe country.

This prejudiced Zimra of US$536 980,05 and $768 365,63 in potential revenue.

The luxury cars, worth millions of dollars, which were smuggled include various models such as Mercedes Benz, Isuzu, Landrover Discovery, Toyota Hilux, Nissan, Lexus, Mazda, Hummer H3, Jeep GrandCherokee, Ford Ranger, BMW, Audi Q7, Toyota Fortuner, and Toyota Quantum among others.Maphosa clandestinely captured into the Zimra system information on 39 cars smuggled into the country thereby generating an equipment number which if punched would display the particulars of the vehicle andenable printing CCCs on the serialised forms at any Zimra station or printing of protected format document on bond paper.

It was stated that Maphosa continued capturing data of the smuggled vehicles and facilitated their registration until when her password was deactivated following investigations.